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USCIS Policy Changes Impacting Green Card Filings

September 2017

USCIS has recently enacted two policy changes in regards to permanent residency applicants applying for Adjustment of Status (AOS). These changes impact applications for Advance Parole Travel Authorization (AP) as well as requirements for in-person interviews for the final adjudication of the I-485 Application for Adjustment of Status.

Employers and AOS applicants should be aware of these changes as they will potentially impact travel outside the U.S. while the AOS is pending, as well as the processing times for the ultimate issuance of the green card.

Policy Change #1 - Issuance of Advance Parole Travel Authorization:

Most AOS applicants are eligible to apply for Advance Parole (AP), a document that   allows applicants to travel outside the U.S. while the AOS application is pending. AP applications typically take 90-120 days to be processed. Previously some AOS applicants (like L-1 and H-1B visa holders) were permitted to travel outside the U.S. while waiting on the AP to be issued, however USCIS has recently begun denying AP applications in situations where H/L visa holders have travelled outside the U.S. while the AP application is pending. While a denial of the AP application does not impact the overall green card process, we advise AOS applicants to discuss the status of their application and any travel needs with their MVA Case Manager. An FAQ review of this issue is provided below.

Policy Change #2 - In-Person Interview Requirements:

USCIS has announced it will begin expanding in-person interviews for certain permanent residency applicants. As of October 1, 2017, USCIS will phase in interviews for employment-based (EB) AOS applicants and their family members. Previously most EB AOS applications were adjudicated at an USCIS Service Center without an interview and applicants were notified via mail of the final decision. This recent change to requiring interviews is being implemented in response to Executive Order 13780, which pushed for more "uniform screening and vetting standards" in visa issuance. An FAQ review of this issue is provided below.

The FAQ review below covers these policy changes and their impact to AOS applicants. We urge any company representative or foreign national seeking guidance on this issue to contact an MVA team member.

FAQ REGARDING THE AP POLICY CHANGE:

Q: What is Advance Parole?

A: Advance Parole (AP) is a travel permission document that allows individuals who are applicants for permanent residency (a “green card”) to travel outside the US and return to the US while their green card application is pending. The AP application was filed together with your green card application and is usually issued about 90-120 days after the date of filing. The AP is typically issued together with the Employment Authorization Document (EAD or work permit) on the same card, commonly referred to as the “EAD/AP”.  The EAD/AP card has an annotation at the bottom that states “Also Serves as I-512 Advance Parole” indicating that the card holder can present the EAD/AP card when re-entering the US from abroad. 

Q: What is different about how USCIS is handling AP applications now?

A: In the past, USCIS has processed AP applications for individuals who hold H/L visas regardless of whether those individuals traveled outside the US and returned on their H/L visas prior to the issuance of the AP. Only just recently, USCIS has begun denying AP applications where individuals traveled outside the US on their H/L visas prior to the issuance of the AP because it deemed the AP application to be “abandoned” due to the individual’s departure from the US. As such, in the past H/L visa holders were not restricted from traveling during the first 90-120 days after filing the green card application. Now, if applicants desire to obtain the AP, they are required to remain in the US until the AP application is approved (90-120 days after filing), even if they hold a valid H/L visa.

Q: My AP has not been issued yet and I have imminent travel plans.  Does this new policy mean I cannot travel?

A: Not necessarily. If you still hold a valid H/L visa and need to travel outside the US, you may still do so. The only difference now is that you run the risk of your AP application being denied due to abandonment if the AP has not yet been issued. It should be noted that, if denied, the AP application can be re-filed if necessary. A denied AP application does not impact your green card application. We recommend contacting your case manager (the MVA individual who assisted you with your green card filing) if you have specific questions about your upcoming travel plans or the validity of your travel documents.

Q: I don’t have my AP yet, but I have already traveled since my green card was filed.  What does this mean for me?

A: It is possible that your AP application may be denied due to abandonment. The denial of your AP does not impact the issuance of the EAD (work permit) for you or your family members, nor does it impact your green card application. If the AP application is denied due to foreign travel, we can simply re-file the AP at a later time when you know you will be able to remain in the US for a period of about 90-120 days (the processing time for these types of applications). There is no USCIS filing fee to re-file an AP application.

Q: What happens if my AP is denied? Does this affect my green card in any way?

A: If your AP application is denied due to the fact that you traveled abroad before it was issued, your EAD application will still be processed, and your green card will still be processed. These applications are not impacted or affected by an AP denial, so you have not done any damage to your green card case! If your AP is denied, we can always discuss re-filing the application at a time when you know you will be able to remain in the US for the requisite case processing time of 90-120 days. A previously denied AP will not make it harder for you to re-file and obtain the AP at a later time.

FAQ REGARDING THE AOS INTERVIEW CHANGE:

Q: My green card application was filed before October 1, 2017.  Will I still be required to attend an in-person interview?

A: Possibly. USCIS indicated that it would begin requiring interviews for employment-based green card applicants starting Oct. 1, 2017, but did not indicate if it would make this requirement retroactive for individuals who filed prior to this date. As such, it is possible that you may be called in for an interview before your green card can be finalized and approved. 

Q: How will I know if I’m required to appear for an in-person interview?

A: You should receive (and our office will also receive) an interview notice by mail. Most interviews are scheduled at least 5 weeks out, and it is possible to request to reschedule the interview in the event that you will not be able to attend.  Upon receipt of the interview notice, MVA will confirm if you are able to attend the interview and will schedule an interview preparation call with an attorney to prepare each applicant for the interview.

Q: What does the interview requirement mean for my green card process?

A: In all likelihood, it means that it will further lengthen the amount of time it takes USCIS to process a green card application.